-BAM United States of America v. Nisbett, No. 1:2011cv01610 - Document 14 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the IRS Summons issued to Respondent, Sharron Nisbett, be enforced, and that Respondent be ordered to appear at the I.R.S. Offices at 2525 Capitol Street, Suite 203, Fresno, California 93721, before Reve nue Agent Elaine Moore, or her disignated representative, within twenty-one (21) days after the filing of the summons enforcement order, or at a later date to be set in writing by Revenue Agent Moore, then and there to be sworn to give testimony and to produce for examining and copying the books, checks, records, papers and other data demanded by the summons, the examination to continue from day to day until completed. The Court further recommends that if it enforces the summons, the Court reta in jurisdiction to enforce its order by its contempt power; re 1 Petition to Enforce IRS Summons filed by United States of America ; referred to Judge O'Neill,signed by Magistrate Judge Barbara A. McAuliffe on 11/29/2011. Objections to F&R - (10) Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 7 BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, California 95814-2322 Telephone: (916) 554-2760 Facsimile: (916) 554-2900 Email: yoshinori.himel@usdoj.gov Attorneys for Petitioner United States of America 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Petitioner, 13 v. 14 Case No.: 1:11-cv-01610-LJO-BAM MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT SHARRON NISBETT, TAXPAYER: SHARRON NISBETT 15 Respondent, 16 This matter came before this Court on November 18, 2011, under the Amended Order to 17 18 19 Show Cause filed September 27, 2011, which, with the verified petition and memorandum, was personally served upon respondent on October 11, 2011. Yoshinori H. T. Himel appeared 20 21 22 for petitioners, and investigating Revenue Agent Elaine Moore was present. Respondent appeared and partially complied with the summons. 23 24 25 26 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Agent Moore’s investigation of Sharron Nisbett to determine the existence and amount of personal 27 income tax liability (Form 1040) for the tax year ending 2009. 28 /// 1 2 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. Authorization for the action is under I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.). 3 4 5 6 7 The Order to Show Cause shifted to respondent the burden of rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). The Court has reviewed the petition and documents in support. Based on the uncontroverted verification of Revenue Agent Moore and the entire record, the Court makes 8 9 10 11 12 the following findings: (1) The summons issued by Revenue Agent Elaine Moore to respondent, Sharron Nisbett, on June 30, 2011, seeking testimony and production of documents and records in respondent's possession, was issued in good faith and for a legitimate purpose under I.R.C. 13 14 15 16 17 § 7602, that is, to determine the existence and amount of personal income tax liability (Form 1040) for the tax year ending 2009. (2) The information sought is relevant to that purpose. (3) The information sought is not already in the possession of the Internal Revenue 18 Service. 19 20 (4) The administrative steps required by the Internal Revenue Code have been followed. 21 (5) There is no evidence of referral of this case by the Internal Revenue Service to the 22 Department of Justice for criminal prosecution. 23 (6) The verified petition and its exhibits made a prima facie showing of satisfaction of 24 25 26 27 28 the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). (7) The burden shifted to respondent, Sharron Nisbett, to rebut that prima facie showing. 1 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 2 The Court therefore recommends that the IRS summons issued to respondent, Sharron 3 4 Nisbett, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 2525 5 Capitol Street, Suite 203, Fresno, California 93721, before Revenue Agent Elaine Moore, or 6 her designated representative, within twenty-one (21) days after the filing of the summons 7 enforcement order, or at a later date to be set in writing by Revenue Agent Moore, then and 8 9 there to be sworn, to give testimony, and to produce for examining and copying the books, 10 checks, records, papers and other data demanded by the summons, the examination to continue 11 from day to day until completed. The Court further recommends that if it enforces the 12 summons, the Court retain jurisdiction to enforce its order by its contempt power. 13 These findings and recommendations are submitted to the United States District Judge 14 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 16 304 of the Local Rules of the United States District Court for the Eastern District of California. 17 Within ten (10) days after being served with these findings and recommendations, any party 18 may file written objections with the court and serve a copy on all parties. Such a document 19 20 should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply 21 to the objections shall be served and filed within ten (10) days after service of the objections. 22 The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. 23 § 636(b)(1). The parties are advised that failure to file objections within the specified time 24 25 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th 26 Cir. 1991). 27 /// 28 1 2 The Clerk shall serve this and future orders by mail to Ms. Sharron Nisbett, 2994 Holly Avenue, Clovis, California 93611. 3 4 5 6 IT IS SO ORDERED. 7 Dated: November 29, 2011 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. McAuliffe UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 9 /s/ Barbara 10c20kb8554

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